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For the second time in three years, the High Court has declared the creation of the position of Chief Administrative Secretary as unconstitutional, dealing President William Ruto a blow in his quest to reward his political allies and those he has poached from the Opposition.

The judgment came after four petitioners, among them, the Law Society of Kenya, moved to court to challenge the appointment of the 50 officers.

A similar judgment had been made in 2021 by Justice Anthony Mrima who declared positions created by then President Uhuru Kenyatta in 2017 as unconstitutional on grounds that since CAS is an office in the national Executive, it changes the structure of the Executive as provided for in the Constitution.

Last Monday, three High Court judges returned a similar verdict, stating that though the Court of Appeal had preserved the original office created by then-President Kenyatta in 2018, once the office was abolished by the Public Service Commission in 2022, the newly created office and complement of 23 office holders could no longer benefit from that suspension.

However, going by recent history, it is not likely that President Ruto and his allies may not take the judgment lightly, and most probably ignore it.

Over the years, many State officials have ignored court orders in different ways. The verdict on the Finance Act petition serves as a clear case of contempt the Executive holds for courts.

The rule of law is internationally recognised as a preeminent indicator of a functioning democracy. 

A glance at the list of CASs presented by President Ruto and that of his predecessor, creates the impression that the positions had largely been given to politicians who supported the Executive during campaigns but lost their political bids. 

In both judgments declared by the High Court, the Executive has been accused of appointing persons to the positions in total disregard of the requirement of public participation as well as creating offices outside the Constitution.

The judgment should therefore serve as a lesson to President Ruto and his top advisers and future governments on the need to live within the bounds of the Constitution.

Creation of illegal positions within the government in order to reward political cronies as well as win support should be disregarded.